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Interviews > March 11, 1999



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Союз юристов Украины > Всемирная ассоциация юристов


THE COUNCIL OF EUROPE AND THE HUMAN RIGHTS

On May 5, 1999 the 50th anniversary of the formation of the Council of Europe will be marked as the most influential international organization of regional character. Mr. Klaus FABJAN who is the Ambassador of Austria in Ukraine and who before coming to Ukraine headed the Department of Human Rights in the Austrian Ministry of Foreign Affairs, kindly agreed to answer all the questions about the main results of further perspectives of Ukraine in the Council of Europe.

Mr. Ambassador, with what aim half a century ago ten West-European countries signed the Charter of the Council of Europe?

The countries, which signed the Charter of the CoE set themselves many aims. The main of which is to achieve unity among all countries and to contribute to cooperation, the human rights protection, which is the basis of justice in all the world. Realization of constructive contribution from the side of the CoE to the work of the organs and specialized institutions of the UN, transforms it into the greatest Pan European organization, which includes more than forty countries. One of the oldest members of the CoE is Austria, which ratified The European Human Rights Convention and also the minutes taken to the Convention. The Convention foresees the creation of the whole system of legal organs of the CoE.

Do you mean the “Strasbourg” Court?

Yes, first of all, I mean the European Court of Human Rights the headquarters of which are located in Strasbourg. It was formed in 1958 in September, when the General Secretary of the CoE got the eighth application to acknowledge the jurisdiction of the Court compulsory. After the reform of the Control mechanism which replaced the European Commission of Human Rights and the European Court of Human Rights by a constant Court, it became possible to solve different problems much quicker. After the Parliament of Ukraine had ratified the Convention, any citizen of the country can appeal to the Court to defend his violated rights in accordance with the specially worked out laws.

The Analysis of the Convention, which had been carried out by some scientists showed it “more abstract than a concrete character”. Do you agree with this statement?

The laws of the Convention are written down in the document of a usual form. Unfavorable criticism of the abstract character of the Convention is groundless, on the contrary, the Convention confirms and concretized these rights. The task of the judicial organs is to decipher and to explain correctly the laws. That is why it is necessary to prepare specialists of judicial sciences, well - educated people with a good training. In Europe there are already set traditions. We do our best to preserve them and to develop.

Is it necessary to understand the fact that the specific character of the outlaw of the Court is the most important task of the protective organs and judges in Ukraine?

There is no doubt that the National Legislation in these countries should correspond to the signed and ratified European Agreements. In the Convention all rights have exactly been formulated and can act, and that is why any judge or a court can put into practice these rights. Slight differences between the law systems must not influence the quality of the human rights protection he is given. We must take into our consideration that the specific character of the Court lies in its “precedent outlaw” - that is to pronounce judgements concerning concrete arguments. The Convention is a unique regional legislative documents analogues of which could not be founded neither in America, nor in Africa.

Can a state restrict a human rights?

Pay attention to the Article 8 of the Convention, which says that “the interference of public organs into the realization of their rights is forbidden”, that in exceptional cases such interference has been foreseen. The problem lies in the fact who decides what it is necessary to do in a democratic society in the interests of national safety of social order. The problem should be worked out and corresponding decisions should be adopted as it is impossible in a word to say who is responsible for this work. I think, that this work should be decided by the legislative organs, but not by the administrative organs. By the way, it is a doctrinal explanation of the Articles of the Convention.

When must we take into our consideration the “euromorals” while discussing some definite questions?

We accurately differ the norms of law from the norms of morals. The Parliament or the Government of the country can adopt only the norms of law, while the norms of morals concern the conduct of a person. That is why the Government of the country cannot directly interfere into the norms of morals. However, a human rights are also based on a man’s morals. The rights, which are contained in the laws demand a specific moral for a man, but sooner refer to the sphere of education and to the conception a “civilized country”, which we come across in the Article 7 of the Convention. This conception is a difficult one and we must discuss it practically from all sides. There is no in the world a list of countries “civilized” or “not civilized”, as it is not a simple transformation from one society to another. If we touch the problem of criminal offences then appears a question, who is to do away with military crimes ? As a matter of principle, this problem should be settled by the Government of a country to its liking. As an example, we can take Kosovo and Albania. As you see, it is a very sharp question which demands a peaceful regulation.

Why does the Council of Europe strike to abolish capital punishment in Ukraine?

In the CoE there is a majority of its members who are fully confident, that capital punishment must not be practiced because it is not a right way to do away with criminality. This conclusion is based on the practical experience of some countries. The Article 2 of the Convention says, that “every man has a right for life”. Such is life. You have said, that life had been created by God - it’s true. But we don’t know this legally. There is no state organ, which created life and no court, which according to the law can deprive a man of life, which he had not created. However, there are exceptions. But they cannot influence this problem greatly. In this case, we speak about theoretical aspects from the philosophical point of view, but in practical life we should be more flexible. It is necessary to avoid intrigues, who prevent other people from understanding and practical value the perspective.

The European Court is a guarantee of a human rights or the interference into the home affairs of a country. How do you think?

When we speak about the interference into the home affairs of a country, first of all, we mean political intrusion, but not legislative. It is necessary to understand this radical position. More than forty European countries ratified the Convention and acknowledged the competence of the European Court of Human Rights. That is why there must not be any interference. Ratification of the Convention is a matter of a particularly good will and one may take or may not take part in it. It doesn’t influence, in any way, the cooperation between the CoE and separate states.

What do you think about the chances of the deputy of the Austrian Parliament Walter Shwimmer?

Yes, it is a question of a political process, but I am glad to express my opinion - Walter Shwimmer is a deputy of PACE and one of the three candidates for the post of the General Secretary of the CoE. However, now it is difficult to say something definitely, but I think he will gain a victory in June. We hope, that the Ukrainian delegation will support him.

In what way has the political situation changed since the time NATO has got new members?

We must differ politics, political processes, political surroundings and military aliens. I cannot speak about the military strategy of NATO. The European countries are disarmed. Now FRG has got very little armament. The military potential of all Central Europe does not threaten anyone. But with the aim of defense and safety we must have efficient troops. Every state makes its contribution into the creation of safe Europe. Some countries are small, others are big and it is real life. Sometimes, big countries have greater duties and responsibilities, than small countries have. But safety is necessary for both - small and big countries.

What is the visa policy of Austrian Embassy in Ukraine?

We do our best to have a well - regulated visa policy, coordinated with the norms of the Schengen Convention, which Austria had joined. Our embassies are given all kinds of visas including collective ones. In 1997 we distributed 27 thousand visas, in 1998 - more than 50 thousand. In 1999 we plan to increase considerably the number of visas. As you see we carry on a policy of great favour in this direction. Austria, by the way, can better than any other country understand the countries of Eastern Europe, as it also had a lot of difficulties and has its own historical experience.

And what about marketing and the “flowing off” of capital?

We include the problem of marketing as well. Europe is interested in the fact that the financial capital should remain in Ukraine and those people are not right who think in a different way. For example, the budget of the EU - 300 milliard cannot be compared with 100 million the budget of Odessa. However, these figures have to be defined more exactly. It’s a very bad symptom when money “flow off”, and it is even worse when money “swim away” abroad. There are many reasons for this, beginning with high taxes and finishing with the fact that business is developing incorrectly. A real businessman is a patriot who must pay taxes to his country, which then will be given to the social sphere. It is quite a real phenomena. In the EU there is a system, which can subsidize countries to have fixed prices for goods. However, there are people who wish to gain superprofits in a roundabout way, thus breaking the laws and provoking actions of landowners and the so-called “banana war”. On the whole the European system works accurately and reliably.

Is it possible to resist the illegal money turnover?

The Mafia structures partly created by people from the former USSR are criminal organizations. However, the problem is that even if a citizen of your country gained money in Ukraine illegally and spent it in Austria, it does not mean that he had broken the laws in Austria and it is impossible to bring him to trial abroad. For example, in accordance with the Ukrainian legislation it is forbidden to export great sums of money abroad. And if a citizen comes to Switzerland, places his money in a bank and then this money will be transferred to Austria, it does not mean, that he breaks the laws of Austria. In such cases Ukraine can give information and give corresponding proofs and, also, demand transmission of the citizen. Of course, at present, there exist international organizations in the struggle against such criminals - Interpol and Europol. That is why Ukraine can realize the exchange of information about the activity of such groups.

What is your opinion of a “ideal state”?

I should say, that the existing form of a legal state is not perfect, but it is a state which exists in real life. It has its drawbacks and its great advantages. We look for an ideal state - “A City of Sun” - at all the pages of history but it is unachievable. We can only strive for this. By the way, there is a serious danger that the search of an ideal state can lead to totalitarism and severe exploitation.

As well as it happened to the former Soviet Union?

Communism is a starting system, a way of deciding some social problems. But we can say, that to a certain extent it is correct and just, but it is only on the way of “correction” of a Society. As to its character and essence the Communist system, by all means, leads to the dictatorship and to the direct violation of a human rights. All people are different and everybody has his own wishes. If we compare an individual and a collective it leads to the priority of collective beginnings and, that makes it impossible for a man to become a fully developed person. Any system or a state must serve the interests of people, but not the interests of any philosophical idea: “The state for a man, but not a man for the state”. It’s a pity that today there are young people, who support communist ideas, which have no modern theoretical base, but which are based on a wrong presentation of an ideal society which does not correspond to the modern level of development of a society.

What consequences are waiting for Ukraine if it “freezes” its foreign debts?

I think, that this will not take place. Otherwise, Ukraine will be excluded from all international organizations and it will be declared “outlaw” - that is what happened to it in 1917. Of course, Ukraine will not be given credits. Moreover, actions towards Ukraine will be discussed at the International Courts and its property abroad will be arrested. For example, not long ago in a Egyptian seaport there was seized a Ukrainian ship for debts of Ukraine. As a results, Ukraine will be in a full isolation from the International community. That is why, Ukrainian Politicians should be very serious and careful in their statements and actions. I don’t think it is a wise way.

What are the perspectives of Ukraine in the Council of Europe?

Ukraine is a member of the CoE and it’s main activity must be directed towards the fulfillment of it’s obligations to defend a human rights, and to adopt new Civil and Criminal Laws; it should establish the freedom of press and independence of the Judicial system; it should improve the local institutions of self - government. Now the decision of these questions is not only a Ukrainian problem because they touch upon it’s obligations before the CoE. We hope, that Ukraine will fulfil it’s obligations, otherwise, it will be excluded.

When is it necessary to wait for new members of the European Union?

Membership of the EU is a problem. At present the question concerning Poland, Hungary and Czech is being discussed. There are two versions of the problem: to wait till the countries will adapt their economy having determined a period of time for this, and then accept them to the EU, or at first to accept them to the EU and only then to determine a long transitional period of time. The point of view of Austria is quite clear. All members of the EU must have equal rights and be responsible for all equally with all countries. We are in favour of the fact to give Poland, Hungary and Czech a period of time for the preparation and only then to accept them. More than that, we shall use this preparatory period for concrete and real reforms. That is why, the approximate date for these countries is the year 2003.

Is it possible to prognoses the time when Ukraine will join the European Union?

I know, that weather can be forecast only for 3 days (and even not for a week). In politics it is rather complicated to prognoses, moreover, to prognoses it for a long period of time. We must remain clever people with a clear understanding of the situation. In the politics there are inexplicable phenomena and, besides this, it directly depends on people. Leaders come and go away and the politics of every new leader changes. The European Union greatly differs from the Council of Europe. Here we can speak about integration. And what is “integration” ? In the EU we integrate our societies. It is not a club, which you can easily enter or leave it. While entering the EU we must be ready to have close connections among the states. It is a very complex process. At present I cannot say that Ukraine will become a full and equal member of the EU, but there has already been worked out a number of Programs of cooperation with Ukraine. I know, that Ukraine strives to this. The Strategy of Integration of Ukraine in the EU has been adopted by the President of Ukraine. By the way, it is necessary to understand that it is a Ukrainian document and it concerns only concrete actions only for the Government of Ukraine.

Thank you for your answers.

*The interview was prepared by Sergei MAXIMENKO

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